This revision petition under Sections 435/439, Cr.P.C. is directed against judgment dated 16.1.2010 passed by the learned Additional Sessions Judge, Sahiwal, whereby conviction and sentence awarded to the Petitioner by the learned Magistrate Section 30, Sahiwal, in case FIR No, 365/1998 dated 8.11.1998 registered at Police Station Harappa, District Sahiwal, for of fences under Sections 320, 279, 427, PPC was upheld.
2. Brief facts of the case are that on 8.11.1998 Liaqat Ali/ASI (PW-6) along with other police officials was present near the Harappa Railway Station when Muhammad lrshad (PW-1) made a statem ent before him to the effect that on the same day at about 11:50 a.m. he along with Iftikhar Ahmad (PW-2) and Muhammad Siddique (PW-3) was present at Chowk 4/10-L, Harappa By-pass. In the meanwhile, his cousin Mukhtar Ahmad came from village on his Yamaha motorcycle No, SLH-9702 and went towards Chowk 4/10-L. He had gone only a few paces when Hilux Pick-up No, SLF-5696, which was being negligently and rashly driven by Petitioner Liaqat Masih, collided with him.
As a result, Mukhtar Ahmad fell on the road and sustained a head injury and his motorcycle's front portion was totally smashed. The Petitioner sped away from the scene. The Complainant and PWs Iftikhar Ahmad and Muhammad Siddique rushed him to the Civil Hospital Sahiwal but he succumbed to his injury on the way. Liaqat Ali/ASI (PW-6) reduced the Complainant's statement to writing (Exh.P A) and despatched the same to Police Station through Zakir Hussain 937/C for registration of case. Muhammad Amjad 1056/C (PW-7) received the said complaint and drew up FIR No, 365/1998 (Exh.P A/1) the same day at 1:50 p.m.
3. The investigation of the case was also entrusted to Liaqat Ali/ASI (PW-6). He reached the place of occurrence, prepared Injury Statement and Inquest Report of Mukhtar Ahmad deceased and despatched the death body for autopsy . Then he secured motorcycle P-1 vide Recovery Memo Exh.PB, prepared rough site-plan of the place of occurrence Exh.PF and recorded statements of the witnesses under Section 161, Cr.P.C. On 11.11.1998, the Petitioner surrendered before him and also produced Hilux Pick-up P-2 which he took into possession vide Recovery Memo Exh.PC. During the investigation Liaqat Ali/ASI found that the Petitioner had committed the offence. Report under Section 173, Cr .P.C. was submitted accordingly .
4. On 12.9.2000 the learned Magistrate indicted the Petitioner under Sections 279, 320 & 427, PPC. He denied the charge and claimed trial. In order to prove its case the prosecution examined seven witnesses. Complainant Muhammad Irshad (PW-1), Iftikhar Ahmad (PW-2) and Muhammad Siddique (PW-3) provided the ocular account.
Arshad Ali (PW-4) testified about the seizure of Yamaha motorcycle No, SLH-9702 and Hilux Pick-up No, SLF- 5696. Dr. Muhammad Tahir Mehmood (PW-5) furnished medical evidence. The Investigating Officer, Liaqat Ali/ASI (PW-6), gave details of his investigation and the evidence he collected in this case. Muhammad Amjad 1056/C (PW-7) was a formal witness. On the close of the prosecution evidence the Petitioner was examined under Section 342, Cr.P.C. He denied the allegations and stated that he did not know anything about the incident. He neither got his statement recorded on oath under Section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of the trial, vide judgment dated 15.5.2009, the learned Magistrate acquitted the Petitioner of the charge under Section 427, PPC holding that the prosecution could not produce any evidence in that respect. However , he convicted and sentenced him under Sections 279 & 320, PPC as under: a) Under Section 279, PPC: Sentenced to simple imprisonment for three months. b) Under Section 320, PPC : Sentenced to simple imprisonment for two years and to pay. Diyat (as per law) to the legal heirs of Mukhtar Ahmad deceased.
Both the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to the Petitioner .
5. The Petitioner preferred appeal against the above-mentioned judgment while the Complainant filed a revision petition for enhancement of his sentence. The learned Additional Sessions Judge, Sahiwal, dismissed both the appeal and the revision petition and maintained the conviction and sentence handed down to the Petitioner by the learned Magistrate. Hence, this petition.
6. The learned counsel for the Petitioner contended that there was not an iota of evidence which could prove that it was the Petitioner who was driving the Hilux Pick-up when the accident took place At the time when FIR Exh.P A/1 was registered it was inchoate. Space was left blank for the name of the accused which was filled in subsequently with that of the Petitioner . This reflected mala fides on the part of the prosecution and showed that he had been falsely implicated in this case. He further contended that complainant Muhammad Irshad (PW-1), Iftikhar Ahmad (PW-2) and Muhammad Siddique (PW-3) were not the eye-witnesses of the accident and the prosecution had planted them. Lastly , even if it was assumed that the Petitioner was at the wheel at the time of accident there was no evidence that he was driving the pick-up rashly or negligently which was the basic ingredient of the offences under Sections 279 and 320, PPC. The learned counsel emphasized that there was gross misreading/non-reading of evidence by the Courts below which had caused miscarriage of justice. In support of his submissions he relied upon Terence Anthony D'Cast a v. The State (1969 PCr.LJ 1228), Muhammad Bakhsh v. The State (1976 PCr.LJ 405) Muhammad Akhtar v . The State (1980 PCr .LJ 103), .and Muhammad Sarwar v . The State (1995 PCr .LJ 1 152).
7. On the other hand, the learned Deputy District Public Prosecutor vehemently opposed this petition and supported the judgments passed by the Courts below .
8. Arguments heard. Record perused.
9. The accident in which Mukhtar Ahmad lost his life took place near Chowk 4/10-L, Harappa By-pass, at about 11:50 a.m. on 8.11.1998. The prosecution case is that it all happened because of rash and negligent driving of the Petitioner . The learned Courts below have recorded a conviction against him under Section 279, PPC as well as Section 320, PPC. The first question before this Court is whether this is legally correct.
10. Section 279, PPC reads as under:
279. Rash driving or riding on a public way: Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. shall be punished With imprisonment of either description for a term which may extend to two years or with fine which may extend to three thousand rupees, or with both.
This section is attracted where,-- i) a person drives a vehicle or rides on a public way; ii) such driving or riding must be rash or negligent, and iii) it should endanger human life or is likely to cause hurt or injury to any person.
On this other hand, Section 320, PPC stipulates:
320. Punishment for qatl-i-khata by rash or negligent driving: Whoever commits qatl-i-khata by rash or negligent driving shall, having regard to the facts and circumstances of the case, in addition to Diyat, be punished with imprisonment of either description for a term which may extend to ten years.
This section is attracted where,-- i) a person causes the death of some other person either by some mistake as contemplated in Section 318, PPC; ii) there is no intention to cause the death of the said person or cause him harm, and iii) the death is caused by rash or negligent driving.
11. A bare reading of the above-mentioned two provisions would show that they apply to two different situations. An offence is committed under Section 279, PPC where the rash or negligent driving or ride on a public way endangers human life but where such driving causes death of a person, Section 320, PPC would be attracted. The offender cannot legally be convicted under Sections 279, PPC and 320, PPC simultaneously . In Santa Prasad Singh v. Thakur Harkishore Prasad Singh (AIR 1939 Patna 389), a Division Bench of the Patna High Court ruled that "imposition of separate sentences would not be justified where the acts constituting two different offences form part of the same transaction against the same accused." The dictum laid down in the Ragho Prasad's case was followed in Badshahzada v. The State (1993 PCr.LJ 699), Haris Khan v. The State (PLD 1993 Peshawar 146), and Muhammad Hanif v. The State (1984 PCr.LJ 746). In the instant case, since the accident took place and Mukhtar Ahmad was killed, Section 279 does not apply and the offence would squarely fall within the ambit of Section 320, PPC. Therefore, the Petitioner's conviction and sentence under Section 279, PPC is illegal.
12. Before I proceed to examine the other , questions that arise in this case it is necessary to notice the law relating to rash and negligent driving.
13. Merriam-W ebster's Dictionary of Law (2nd Printing Harrisonburg; VA December 2016) defines "negligence" as "failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation." The Corpus Juris Secundum ( Volume 65, pp. 281-82) writes: "Negligence is characterized by inadvertence, heedlessness, thoughtlessness, inattention, and the like. It is a wrong which constitutes a ground of legal liability . While negligence is predicated on want of care, and liability therefor is based on a want of proper care, negligence is not the want of all care. Negligence may result in a variety of ways, but it is ordinarily the result of carelessness, and is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like. Negligence is inconsistent with the exercise of ordinary care ....
Negligence is not a fact in itself but is the legal result of certain facts. It need not arise from ownership, operation, or control; it can arise from breach of duty towards the plaintif f .... Liability rests not on the ground of danger but on the ground of negligence. Danger of itself is not negligence, and the fact that one performs a dangerous act does not legally result in the conclusion that such act was negligent."
14. The Corpus Juris Secundum furthe r states that in criminal law "culpable negligence" involves a reckless disregard for the lives or safety of other s and is negligence of a higher degree than that required to establish liability on a mere civil issue. To make a case of culpable negligence in a criminal prosecution, simple negligence is not sufficient; there must be that degree of negligence or carelessness which is denominated as "gross" and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances as to furnish evidence of indifference to consequences." It adds: "'culpable negligence' and `gross negligence' are not necessarily synonymous although culpable negligence might be gross negligence and gross negligence might be culpable negligence. The difference between culpable negligence and gross negligence is that culpable negligence is more than gross negligence while both are very high degrees of negligence, the former involves the idea of recklessness and the latter does not." (pages 294-95).
15. Halsbury's Laws of England (Fourth Edition). V olume 34, (p.3), explains "negligence" as follows; "Negligence in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.
Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omis sions which can be reasonably foreseen to be likely to cause physical injury to persons or property . The degree of care required in the particular case depends on the surrounding circu mstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury . The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintif f who is also injured by the same act to claim unless he is also within the area of foreseeable danger . The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintif f in the circumstances of the case and damage suffered by the plaintif f, together with a demonstrable relation of cause and ef fect between the two."
16. In contrast, a "rash" act is defined as an over-hasty act. It is "doing something quickly and without thinking carefully about what will happen as a result". It is used in contra-distinction to a deliberate act and is usually reckoned as a synonym of "reckless" and "careless". In Muhammed Aynuddin alias Miyam v. State of Andhra Pradesh (AIR 2000 SC 251 1), the Supreme Court of India observed: "A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular . It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
17. In Empress of India v. Idu Beg 11881 (3) All 776), Straight J. explained the meaning of criminal rashness and criminal negligence in the following words: "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury , or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which, having regard to all the circumstances out of which the charge has arisen; it was the imperative duty of the accused person to have adopted." This meaning of criminal rashness and criminal negligence is widely accepted even today.
18. The legal principles for determining culpability in cases of rash and negligent driving are more or less well- established. Some of the doctrines falling in the realm of accidental civil or tortuous jurisprudence are also applicable to crimes. They may be summarized as follows:- i) Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in the light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. ii) Speed of a vehicle may not always be the determining factor to prove rashness and negligence. A person driving a motor vehicle at the speed of say 20 miles an hour on a road on which children of small ages are running about would be rash and negligent. But the same would not be true in the case of a highway even if he was to drive at the speed of 70 miles an hour. The criterion, in nutshell, in all such cases is whether upon the evidence on record a person can be said to have been driving with due care and caution or else had been negligent i.e. had omitted to1 * 2 do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human af fairs would do, or done something which a prudent and reasonable man would not do. iii) In determining the question of negligence or contributory negligence the Court should apply the parameter of "reasonable Care". The doctrine of reaso nable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrians on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. iv) When two persons on the highway are so moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and this is true whether they are both in control of vehicle or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle. v) Drivers of vehicles or riders should keep well to the left side of the highway unless road signs or markings indicate otherwise, or they are about to overtake or turn right, or have to pass stationary vehicles or pedestrians in the road. If two motor vehicles collide in the centre of the road, the inference is, in the absence of evidence enabling the Court to draw any other conclusion, that both drivers were equally to blame; and it is not a proper decision to hold that, in the absence of evidence enabling the blame to be fixed upon one driver or the other , no sufficient case has been established against either . vi) There is an obligation to take special care at cross roads. The driver of a vehicle which approaches a major road from a side road ought to give way to traffic on the major road, but the driver of a vehicle on the major road is not absolved from the duty of taking care to avoid collision with a vehicle emerging from a side road. Where there is a collision at cross roads of equal status, there is a guiding rule that the vehicle, which has the other on its right hand side must give way. The driver of a vehicle in general owes no duty to traffic entering a light-controlled crossing against the lights. However , a driver has no absolute right to enter a road junction merely because the lights have turned in his favour; he is bound to ensure that it is safe for him to do so. vii) Driving a defective vehicle where the defect might reasonably have been discovered is a negligent act. It is negligent to leave a vehicle unattended either on a slope where it runs down of itself, or in such special circumstances that the mischievous intervention of a stranger to restart it should have been foreseen. To leave a horse and cart unattended on the highway may be evidence of negligence. To leave a vehicle without lights in a dark road is prima facie evidence of negligence. viii) It is a wrong presumption that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presu mption and in such a case the driver has to explain how the accident happened without negligence on his part. ix) In appropriate cases the doctrine of res ipsa loquitor may be pressed into servi ce. This principle which is a rule of evidence determines the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer . x) In order to be held to have acted negli gently , it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it; it is only required that, under the circumstances, the actor should have been aware of the risk and that his or her failure to perceive it was a gross deviation from ' the care a reasonable, prudent person would have exercised under those circumstances. xi) An intentional, willful, or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence, as is an inadvertent violation of a prohibitory statute or ordinance accompanied by recklessness of the probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of the consequences or a heedless indifference to the safety of others, if injury or death proximately ensue.
19. In the context of the Pakistan Penal Code, 1860, Section 318 defines Qatl-i-Khata as an offence where one causes the death of another either by mistake of act or by mistake of fact without any intention to cause or harm to that person. Section 320 provides punishment for Qatl-i-Khata by rash or negligent driving. As against this, Qatl-3 4 5 6 7 8 9 10 11 12 bis-Sabab has been defined by Section 321 as an offence where the one responsible for the death of another had no intention but it was occasioned as a result of his unlawful act. It follows that where the accused does not possess a valid licence he would be acting unlawfully if he drives a vehicle. Therefore, if he causes death of anybody by negligently or rashly while driving, the offence would fall within the ambit of Section 320. The position would, however , be different where he has the licence and in that eventuality Section 322 would be attracted.
Reference in this regard may be usefully made to Munir Hussain v. The State (1994 PCr.LJ 406) and Atta Muhammad v. The State (2005 PCr.LJ 1648). It may be added that the offence would fall in the category of Qatl-i- Amd if a person hits another with his vehicle with the intention of causing death or drives on a public way rashly or negligently with the knowledge that such driving is so dangerous that it would in all probability cause an accident and it results in death. Reliance is placed on Abdullah v. The State (2001 PCr.LJ 1548) and Muhammad Latif v. The State and others ( PLD 2018 Lahore 423 ).
20. It may not be out of place to mention here that in our country it is quite frequent that after the accident the driver of the vehicle who is responsible for it manages to flee from the scene. In such cases the investigating agency should not only trace him but the prosecution should prove his identity during the trial.
21. Now I turn to the case in hand. The ocular account of the accident was furnished by Complainant Muhammad Irshad (PW-1), Iftikhar Ahmad (PW-2) and Muhammad Siddique (PW-3). They deposed that on 8.11.1998 at 11:50 a.m. they were present at Chowk 4/10-L, Harappa By-pass, when Hilux Pick-up No, STY-5696 driven by the Petitioner collided with the motorcycle of Mukhtar Ahmad who sustained head injury . The Medical Officer; Dr. Muhammad Tahir Mehmood (PW-5), confirmed that the cause of his death was that injury. It is observed that the accident took place on 8.11.1998 at 11:50 a.m.' Complainant Muhammad Irshad (PW-1) reported the matter to the police at 1:20 p.m. and FIR No, 365/1998 Exh.PA/1 was registered at 1:50 p.m. Keeping in view the fact that the Police Station was nine kilometres from the crime scene, the FIR was lodged quite promptly. However, the learned counsel for the Petitioner contends that space was initially left blank for the name of the accused and the Petitioner's name was inserted later on. This contention has weight for a number of reasons. Firstly, FIR Exh.PA/1 shows interpolations which are visible even to the naked eye. Secondly, perusal of the Inquest Report Exh.PE reflects that when the Investigating Officer drew it up the identity of the person who drove Hilux Pick-up No, SLF/5696 which hit Mukhtar Ahmad deceased was still not known. The Inquest Report is prepared under Chapter 25, Rule 35 of the Police Rules, 1934, in every case of unnatural death and has immense importance which was appreciated by this Court in Ahmad Nawaz and others u. The State and others (2016 PCr.LJ 1267) and the Hon'ble Supreme Court of Pakistan in Muhammad Ilyas v. Muhammad Abid alias Billa and others (2017 SCMR 54). It not only provides a resume of the case and an overview of the crime scene but helps check subsequent fabrication of record. Thirdly, it is the prosecution's own case that the delinquent driver fled from the scene immediately after the collision. Admittedly, he was not known to the Complainant and PWs Iftikhar Ahmad and Muhammad Siddique. There is no evidence how they learnt his name. None of the persons. who may have given them information was examined at the trial. All these factors create serious doubt about the involvement of the Petitioner in this case.
22. The presence of Complainant Muham mad Irshad and PWs Iftikhar Ahmad and Muhammad Siddique at the place of occurrence at the relevant time is also not free from doubt. The Complain ant deposed that they all owned land near Chowk 4/10-L and had gathered in his field. However , neither during the investigation nor at the trial the witnesses produced any document which could prove that they had any property there. They did not disclose the purpose of their assembly either . More importantly , there are material contradictio ns in the prosecution evidence.
The Complainant deposed that he along with PWs Iftikhar Ahmad and Muhammad Siddique rushed Mukhtar Ahmad to the hospital after the accident. In their cross-examination the PWs denied having accompanied him.
Further , the Complainant testified that Mukhtar Ahmad died on way to the hospital. In contrast, Dr. Muhammad Tahir Mehmood (PW-5) stated that his death was instantaneous because the entire brain matter had come out.
This is not all. The conduct of the witnesses was contrary to normal human behaviour . It was unnatural for PWs Iftikhar Ahmad and Muhammad Siddique not to accompany the victim to the hospital and for the Complainant to turn back half-way on discovering that he had expired.
23. Lastly , the factum of rash and neglig ent driving is also not proved. The witne sses only alleged that the Hilux Pick-up was being driven at a high speed . There is no evidence that when the incident happened, the condition of the traffic or the road was such that the driver was required to drive 'the vehicle slowly . Moreover , it has not been shown that he had violated any traffic rules. In this view of the matter , even if it is admitted that the driver was driving it at a high speed, no element of rashness or negligence in his conduct has been established.
24. For what has been discussed above, I hold that the prosecution has failed to prove its case against the Petitioner beyond reasonable doubt. Resultantly , this revision petition is accepted. His conviction and sentence are set aside and he is acquitted of the charge. During the pendency of this petition his sentence was suspended by this Court and he was released on bail vide order dated 21.4.2010 passed in Crl. Misc. No, 2/2010. His surety is discharged. Merriam-W ebster Online Dictionary . reproduced in the language of the Court/author . Ravi Kapur v . State of Rajasthan (AIR 2012 SC 2986 = 2013 SCMR 480 ). Terence Anthony D'Casta v. The State (1969 PCr LJ 1228), State through Advocate General, N.W.F.P. v. Mohib Gui [PLJ 1974 Cr.C. (Pesh) 586), Muhammad Akhtar v. The State (1980 PCr.LJ 103), Muhammad Sarwar v. The State (1995 PCr.LJ 1152), Ali Muhammad v. The State (2001 YLR 3313 ), Farman Ullah v. The State and others (2007 PCr .LJ 1393). Ravi Kapur v . State of Rajasthan, ibid. Halsbury's Laws of England (Fifth Edition) V olume 78 p.64. Halsbury's Laws of England (Fifth Edition) V olume. 78 p.65. Halsbury's Laws of England (Fifth Edition) V olume 78 p.67. Halsbury's Laws of England (Fifth Edition) V olume 78 p.68. Mohammad Aynuddin alias Miyam v . State of Andhra Pradesh (AIR 2000 SC 251 1). Mohammad Aynuddin alias Miyam v. State of Andhra Pradesh (AIR 2000 SC 2511) and Ravi Kapur v. State of Rajasthan (AIR 2012 SC 2986) Corpus Juris Secundum (Edition:2010) V olume 65A p.913. Corpus Juris Secundum (Edition:2010) V olume 65 p.295.